Of Course It Should Be a Black

June 29, 1991

Should Thurgood Marshall's replacement on the Supreme Court be a black? Of course. This has nothing to do with quotas or affirmative action. It has to do with the Supreme Court's ability to deal with one of the most vexing and enduring problem areas of American law. That is race (not ethnic, not sex) relations.

The Constitution of 1787 deals with race (Article I, Section IX), and so do the Reconstruction amendments (XIII, XIV and XV), and so does the modern-day amendment (XXIV) abolishing state poll taxes. There are tens of thousands of local, state and federal civil rights laws that deal primarily if not exclusively with black-white legal status. Every term, the Supreme Court considers a number of civil rights cases that involve some of those laws.

Racism and the legal effort to end it are part of the memory, mind, blood, bone and sinew of the American experience -- we fought a civil war over it -- and of American law. Of course the Supreme Court, which decides things as a group, in face-to-face conversations and exchanges of written arguments -- needs a justice whose perspective is different, whose judgment, temperament and experience are rooted in being black.

Imagine how much Justice Marshall's memories of once having had a client lynched contributed to the Supreme Court's understanding of the implications of how they would intepret the law. The Constitution is often said to be a living document. It is alive in more ways than one, and a variety of such diverse insights by a diversity of Supreme Court justices help keep it breathing.

As he looks around, President Bush will find there are many black lawyers who are the right age, with the right law school and professional credentials, who are conservative and Republican, and who were denied the equal protection of the laws in their youth. One of them could offer colleagues on the Supreme Court a dimension of understanding of the majesty and reach of American law and the meaning of justice.